The Supreme Court has decided to hear a Mississippi case that could allow states to ban abortions after 15 weeks of gestation.
The case will probably be heard in the fall of this year. It comes as Democrats and President Joe Biden intensify their push to expand the Supreme Court from its current nine members, in part to protect abortion rights.
Mississippi Gov. Tate Reeves hailed the court’s decision, saying a review of the nation’s abortion laws was “long past due.”
“The sanctity of life. The future of our children. Mississippi is at the forefront of protecting both. And that is what is at stake in the case we have been praying the U.S. Supreme Court would decide to hear,” the Republican governor said on social media.
It is the second abortion-related case the high court has decided to take up since Justice Amy Coney Barrett’s arrival on the bench last fall gave the conservative bloc a 6–3 majority on the court, giving pro-life activists hope.
Then-Kentucky Gov. Matt Bevin, a Republican, signed the law, the Human Rights of Unborn Children Act, which stopped D&E abortions after 11 weeks of pregnancy and was subsequently enjoined by federal courts. After the succeeding administration of Gov. Andy Beshear, a Democrat, refused to defend the statute in court, Kentucky Attorney General Daniel Cameron, a Republican, indicated that he wanted to do so.
The legal issue to be examined isn’t the constitutionality of the Kentucky statute as such, but standing—that is, whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
In theory, the Supreme Court could overturn Roe v. Wade, the 1973 ruling that made abortion lawful throughout the United States, but narrowing its reach seems more likely. The court could also take aim at the Planned Parenthood v. Casey (1992) ruling, which held that states can’t impose significant restrictions on abortion before a fetus becomes viable for life outside the womb. The Casey ruling didn’t specify when viability occurs but suggested it was at about the 24-week gestation mark.
The Supreme Court took its time deciding whether to hear the appeal of the case from Mississippi, known as Dobbs v. Jackson Women’s Health Organization, court file 19-1392, which was filed with the court in April 2020.
No justices stated in the unsigned order that they disagreed with the decision to hear the case.
Mississippi’s petition to the Supreme Court notes that the state enacted H.B. 1510, the Gestational Age Act in 2018, which “protects the health of mothers, the dignity of unborn children, and the integrity of the medical profession and society by allowing abortions after 15 weeks’ gestational age only in medical emergencies or for severe fetal abnormality.”
The petition states that surgical abortion after 15 weeks “carries inherent medical threats to the mother.” The risk of the mother dying is 35 times more likely at 16 to 20 weeks than at 8 weeks, “and the relative risk of mortality increases by 38 percent for each additional week at higher gestations.”
“It is undisputed in the medical literature that a human fetus develops neural circuitry capable of detecting and responding to pain by 10–12 weeks after the last menstrual period,” it states.
“At 14–20 weeks, spinothalamic circuitry develops that can support a conscious awareness of pain.”
During the time period covered by the law, “the human fetus is likely capable of conscious pain perception in a manner that becomes increasingly complex over time.”
“We know so much more about the development of unborn children today than 1993—much less 1972,” Reeves said in an apparent reference to Roe v. Wade, after the Supreme Court decided to hear the Mississippi case.
“Honestly, the abortion debate has divided our country for over 50 years, and many of us believe the decision to review is long past due.”
Mississippi argues that viability is “not an appropriate standard for assessing the constitutionality of a law regulating abortion.” The state says its ban is intended to safeguard the health of the mother and baby.
“America cannot be a humane, civilized society if its courts preclude lawmakers from imposing reasonable limits on the taking of innocent life,” Mississippi Attorney General Lynn Fitch, a Republican, has argued.
The federal district court that found against Mississippi excoriated state lawmakers for passing the law at issue, H.B. 1510.
“The Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting,“ the district court stated in its ruling. ”No, legislation like H.B. 1510 is closer to the old Mississippi—the Mississippi bent on controlling women and minorities. The Mississippi that, just a few decades ago, barred women from serving on juries ‘so they may continue their service as mothers, wives, and homemakers’”—a reference to a Mississippi legal precedent from 1966.
“The Mississippi that, in Fannie Lou Hamer’s reporting, sterilized six out of ten black women in Sunflower County at the local hospital—against their will. ... And the Mississippi that, in the early 1980s, was the last State to ratify the 19th Amendment—the authority guaranteeing women the right to vote.”
The lawyer representing the clinic said in court filings that there was no reason for the Supreme Court to consider the case.
“In an unbroken line of decisions over the last fifty years, this Court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” lawyer Hillary Schneller wrote.
Mississippi’s argument was “based on a misunderstanding of the core principle of” prior Supreme Court rulings, she said.
“While the State has interests throughout pregnancy, ‘before viability, the State’s interests are not strong enough to support a prohibition of abortion,’” she said.
